In
1991 I wrote a policy analysis for the Cato Institute, a public policy
think tank in Washington, D.C., entitled, “Contrived Distinctions:
The Doctrine of Commercial Speech in First Amendment Jurisprudence.”
In that document I explained my view that the Supreme Court erred by
affording commercial speech less protection than political speech. On
June 23, 2011, the Supreme Court decided Sorrell v. IMS Health (6-3).
The decision represents a revolution in First Amendment jurisprudence,
granting commercial speech heightened First Amendment protection for
the first time. It invites litigation to eliminate all manner of content-based,
speaker-based, and viewpoint-based discriminatory laws that penalize
those who would communicate a commercial message. It protects the harvesting
and use of data in commercial speech as speech activity. It is the closest
to the Founding Fathers’ construct that our Supreme Court has
ever come in commercial speech jurisprudence.

Under
the Founding Fathers’ construct of the First Amendment, the federal
government was disarmed of any power over speech and press, regardless
of whether the content concerned politics or commerce. Indeed, each
attempt by the Supreme Court to distinguish commercial from political
speech has foundered on distinctions that could not withstand serious
scrutiny. As the Court recognized in its landmark Virginia State Board
of Pharmacy decision in 1976, “[a]s to the particular consumer’s
interest in the free flow of commercial information, that interest may
be as keen, if not keener by far, than his interest in the day’s
most urgent political debate.”

The
Founding Fathers gave “the press” exemption from federal
speech controls without regard to the content communicated. Indeed,
the press known to the Founders was principally advertisement of commercial
matters, such as announcements of sea voyages to Barbados or the availability
of various wares. Alexis de Tocqueville contrasted the French press
with the American, precisely because here the press was filled with
commercial content. He wrote in Democracy in America: “In France,
the space allotted to commercial advertisements is very limited, and
the newsintelligence is not considerable, but the essential part of
the journal is the discussion of the politics of the day. In America
three quarters of the enormous sheet are filled with advertisements,
and the remainder is frequently occupied by political intelligence or
trivial anecdotes; it is only from time to time, that one finds a corner
devoted to passionate discussions, like those which the journalists
of France every day give to their readers.”

Published
pieces were not infrequently entirely commercial and the Founding Fathers
understood the entire lot, commercial and non-commercial, to be part
and parcel of “the press.” To be sure, they did not conceive
of content in commercial versus non-commercial terms. That segregation
began in the 1930s, as the Supreme Court came to deem economic liberty
as less deserving of protection than civil liberty and relegated economic
rights to mere rational basis protection. Consistent with that bifurcation,
and without regard to constitutional history and precedent, the Supreme
Court initially deemed commercial speech undeserving of any First Amendment
protection in Valentine v. Chrestensen (1942). It did an about face
in 1980 when in Central Hudson Gas & Electric Company v. Public
Service Commission, the Court created an intermediate scrutiny test
to provide commercial speech regulation greater scrutiny.

Members
of the Court, including Justice Thomas, have been critical of the Court’s
political speech versus commercial speech distinctions and its Central
Hudson intermediate scrutiny test. That debate was settled, at least
for the moment, in the landmark decision just issued by the Court: Sorrell
v. IMS Health. In Sorrell, the Supreme Court for the first time recognized
what it had only before expressed appreciation for in the political
speech context, that viewpoint discrimination mattered regardless of
whether the speech in issue concerned political advocacy or a persuasive
appeal to sell a product.

Advertisement

In
Sorrell, the Court struck down a Vermont law that forbad pharmacies
from making available, and others from purchasing, acquiring, and using,
prescriber-identifying information from physicians. That information
was patient “de-identified,” so no privacy interests were
involved. That information held by pharmacies is often sold to drug
companies that use it to make sales pitches through their drug representatives
to specific physicians, a practice known as “detailing.”
Rather than allow individual physicians to decide whether they wanted
a sales pitch or not, Vermont thought it wise to forbid the use altogether
but to allow non-commercial entities to use the information as well
as certain other favored commercial parties, such as those who sell
generic drugs, along with the state of Vermont in a “counter-detailing”
program. The law was thus a speaker-based, content-based, and viewpoint-based
act of commercial speech censorship.

Under
commercial speech jurisprudence preceding Sorrell, content and viewpoint
based discrimination had become the norm. If a regulator did not like
the fact that a dietary supplement maker wished to explain truthfully
that a supplement containing folic acid could reduce the risk of neural
tube defects, that FDA regulator would order the speech off the market
(precisely on the basis that the agency wished the content in issue
not to be communicated for a non-drug product). If Florida wished to
ban for thirty days the right of lawyers to send direct mail solicitations
to accident victims, viewing that as a repulsive form of ambulance chasing,
the state could do that without offending the First Amendment, the Supreme
Court so held in Florida v. Went For It.

In
light of Sorrell, however, the world has changed. Unlike before, under
the new doctrine of Sorrell, any time the government presumes to adopt
an anti-competitive advertising law that discriminates against one set
of speakers to advance the interests of others or that aims at censoring
specific content or that aims to exclude specific speakers, it will
now face heightened constitutional scrutiny (which in effect means that
unless the speech is demonstrably false and misleading, it will be protected
against such arbitrary acts of the government).

Sorrell
v. IMS Health is a monumental decision that moves commercial speech
jurisprudence from a condition of broad deference to legislative power
back to one skeptical of that power in defense of individual freedom.
Commercial speech is indispensable to the lives of all Americans. While
Americans may be able to cope day to day without uttering a political
word or receiving one, almost everyone must communicate a commercial
message either directly or indirectly to survive. That is not to say
political speech is any less deserving of protection than commercial
speech, but it is to say that the importance of a commercial message
is inextricably intertwined with persuasion necessary to maintain life,
liberty and property and, so, should not be viewed as any less vital
to freedom than political speech. While we depend on the free flow of
political ideas and information to check government abuses, we likewise
depend on the free flow of commercial information to discern the effects
of government action, to estimate the relative worth of those things
upon which we rely for life and for self-fulfillment, and to exercise
informed choice in the market.

Subscribe
to the NewsWithViews Daily News Alerts!

Enter
Your E-Mail Address:

The
Founding Fathers wisely chose to disarm the federal government of any
power whatsoever over speech and press. The Supreme Court’s Sorrell
v. IMS Health decision is the closest our modern court has come to reducing
the regulatory power of government over speech deemed commercial and
to reuniting such speech with political communication consistent with
the Founding Fathers’ construct. The decision in a very profound
way increases individual liberty by significantly decreasing the power
of government to interfere with the free flow of information in the
market.

Jonathan W. Emord
is an attorney who practices constitutional and administrative law before
the federal courts and agencies. Congressman Ron Paul calls Jonathan “a
hero of the health freedom revolution” and says “all freedom-loving
Americans are in [his] debt . . . for his courtroom [victories] on behalf
of health freedom.” He has defeated the FDA in federal court a remarkable
eight times, six on First Amendment grounds, and is the author
of Amazon bestsellers The
Rise of Tyranny, and Global
Censorship of Health Information. He
is also the American Justice columnist for U.S.A. Today Magazine. For
more info visit Emord.com.